Avelino Gregorio Marcos v. the State of Texas

Affirm and Opinion Filed May 23, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00089-CR
AVELINO GREGORIO MARCOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-0923557-Y
MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Goldstein
Opinion by Justice Molberg
Avelino Gregorio Marcos, appellant, appeals the revocation of his community
supervision. Court-appointed appellate counsel, Juanita Bravo Edgecomb, filed an
Anders brief and a motion to withdraw as counsel, asserting that there are no non-
frivolous issues that appellant could raise on appeal. We have reviewed the record
and agree. We grant counsel’s motion to withdraw and affirm the judgment below.
Appellant Avelino Marcos was indicted for the offense of burglary of a
habitation in 2009. Appellant waived his right to a jury trial and pleaded guilty
pursuant to a plea-bargain agreement with the State. The trial court accepted the
agreement and sentenced appellant to ten years’ confinement, probated for eight
years.
The State filed an amended motion to revoke appellant’s probation on May 1,
2020. The State alleged appellant violated five conditions of supervision: that he
failed to report to the probation office from August 2009 through February 2017
(condition (d)); failed to pay probation fees and was delinquent $1,820 (condition
(j)); did not pay the Crime Stoppers payment and was delinquent $50 (condition (k));
did not complete the required community service hours (condition (l)); and did not
pay $6,300 in restitution as ordered (condition (p)). On January 21, 2021, the trial
court held a hearing. Appellant pleaded not true to the allegations. After hearing
testimony from a probation officer and appellant, the trial court found that appellant
“did violate conditions J, K, L, and P, and [found] those allegations true.” The court
sentenced appellant to two years’ confinement.
If court-appointed appellate counsel files an Anders brief asserting that no
arguable grounds for appeal exist, we must independently examine the record to
determine whether the appeal is “wholly frivolous.” Anders v. California, 386 U.S.
738, 744–45 (1967). “An appeal is ‘wholly frivolous’ or ‘without merit’ when it
‘lacks any basis in law or fact.’” Crowe v. State, 595 S.W.3d 317, 319 (Tex. App.—
Dallas 2020, no pet.) (quoting McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10
(1988)). Arguments are frivolous if they cannot conceivably persuade the court. Id.–2–
Counsel states in her Anders brief that she conducted a thorough review of the
record in this case and concluded the “appeal is without merit and wholly frivolous
in that the record reflects no reversible error.” In her motion to withdraw, counsel
confirmed that she mailed a letter to appellant in which she notified him of his right
to file a pro se response and his right to review the record in preparation for filing
the response. Counsel stated she forwarded copies of the reporter’s records and the
clerk’s record to appellant.
This Court also sent appellant a letter informing him that counsel filed an
Anders brief and a motion to withdraw. Copies of the brief and motion were
included with the letter. This Court informed appellant that he had a right to review
the appellate record himself, to file a pro se response, and to seek discretionary
review should the Court find his appeal frivolous. Appellant did not file a response.
Based on our review of the record, we conclude that appellant’s appeal “lacks
any basis in law or fact” and is therefore frivolous. See Crowe, 595 S.W.3d at 319.
Accordingly, we grant counsel’s motion to withdraw, and we affirm the trial court’s
judgment.
/Ken Molberg/
210089f.u05 KEN MOLBERG
DO NOT PUBLISH JUSTICE
Tex. R. App. P. 47
–3–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AVELINO GREGORIO MARCOS, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F-0923557-Y.
No. 05-21-00089-CR V. Opinion delivered by Justice
Molberg. Justices Nowell and
THE STATE OF TEXAS, Appellee Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 23rd day of May, 2022.
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